FAQ – Frequently asked questions at the intersection of flight and protection against violence

This FAQ responds to questions revolving around the topic of protecting refugee women and girls against violence. It begins with a glossary that clarifies key terms and their consequences for female refugees. The glossary will be amended and updated as required on the websites of bff and FHK.

The FAQ then continues with a number of questions that are categorised according to ten broader topics. Some of the questions recur because they belong to different topics at the same time.

It is important to note that legal regulations frequently change in this field. This FAQ is concerned with the legal situation as of November 2017.

As a general principle, every person who is not a EU citizen requires a permit to stay in Germany. The person is obliged to leave the country if the residence permit expires after a certain period or if it ends due to a negative decision on granting or renewing a residence title, or if, for example, an asylum application has been finally rejected.

This does not always imply that a person also immediately leaves or is entitled to immediately leave the country. Sometimes there are actual or legal obstacles, for example, if documents are missing, if a person is unable to board because of maternity protection, if there is no airport in the country of origin, or for other reasons. In such cases, the deportation will be temporarily suspended. This does not amount to a residence title. It merely certifies that, although the person is obliged to leave, the deportation cannot be presently enforced.

Deportation refers to the execution of the obligation to leave. That is, deportation is in each instance preceded by a decision on terminating or discontinuing residence. Moreover, the person is at first required to voluntarily leave the country and thereby to comply with the obligation to leave. It is not until the person neglects to do so that authorities can prepare and enforce compulsory deportation.

Whereas deportation refers to authorities enforcing the termination of residence, expulsion solely lays down the revocation of the residence title along with a re-entry ban.

A person will be expelled if it has been determined that the person’s residence in the Federal Republic of Germany compromises public safety and order or other compelling government interests. This is assumed if the person has been substantially or repeatedly involved in criminal acts, particularly in offences against the Narcotics Act or against the right to sexual self-determination.

In any case, the government agency or, in the event of an appeal against the decision, a court has to consider, in each individual case, whether the state’s concern with having the person deported outweighs the person’s wish to stay. In this regard, the person’s ‘rootedness’ in Germany and their residence status are of special importance.

A person who has been expelled is not neces-sarily required to leave the country or rather will not necessarily be deported. If, for example, refugee status has been recognised and if it has been determined that the person is threatened with torture or other human rights violations in their country of origin, the state will, as a rule, abstain from deportation, even if the person has become liable to prosecution in Germany. In this case, however, a residence permit will not be granted. Such a person’s deportation will more often be considered as permanently suspended.

Basic information on regulations relating to asylum and residence matters, but also on family reunification or on particularly vulnerable refugee groups, can be found on the website of GGUA refugee support:

Work materials, prepared by a lawyer and the German Parity Welfare Association (Der Paritätische), on temporary suspension of deportation, individual residence titles, and protection status are listed below:

For an overview of different residence titles and protection statuses: See attached table.

In the case of refugees from so-called safe countries of countries and, by implication, female refugees who have been affected by violence, it should be noted that, based on an assessment of the situation in the respective country, the Federal Republic will assume that no political persecution or human rights abuses occur in these countries.

The so-called safe countries of origin appear in a list contained in the annex to the Asylum Act. The list is reviewed every two years. Currently (as of September 2017), the following countries are included: the member states of the EU, Albania, Bosnia and Herzegovina, Ghana, Kosovo, Macedonia, the former Yugoslav Republic of Montenegro, Senegal, Serbia (Asylum Act, annex II ad section 29a). Consequently, it will be presumed for any person from one of these countries that they do not have to fear being persecuted, so that their asylum application will be routinely rejected as “manifestly unfounded”. In this case, refugees will have to provide facts and evidence in a fast-track procedure and prove that, contrary to the statutory presumption, they have to fear persecution after all. This implies in particular that their account of such persecution shall be very precise and detailed and that, even less than in a regular procedure, it cannot be restricted to the generally difficult situation in their country of origin.

If “fast-track procedures” (Asylum Act, section 30a) apply, the Federal Office shall decide on requests for protection filed by persons from so-called safe countries of origin within one week.

There are further restrictions pertaining to the accommodation of persons from so-called safe countries of origin. There exist, among other things, special reception centres where they are obliged to reside for the duration of the asylum procedure and possibly until deportation. If the persons concerned file an appeal against the rejection of their asylum applications, they can be deprived of their mobility rights by imposing a residence obligation on them. Also, they will often be banned from taking up employment, just as it is possible to cut their benefits. How quickly and strictly authorities will resort to such sanctions varies from one federal state to the other. Not all federal states have implemented these legal provisions, so that these regulations still do not always apply practically. The cases in which women from so-called safe countries of origin can assert gender-specific violence as a reason for seeking asylum will be addressed here.

Classifying an asylum application as “manifestly unfounded” (that is, rejecting it) entails a considerable restriction of legal protection and further restrictions concerning the stay in Germany.

In case an asylum request is considered “mani-festly unfounded”, however, an appeal must be filed within one week only. But, in contrast to a request that is simply considered “inadmis-sible”, filing an appeal here does not by default mean that everything remains the same for the woman until the appeal procedure has been concluded.

Instead, the Foreigners Office can urge the women during the appeal proceedings to assist procuring travel documents that would facili-tate the deportation, and, in extreme cases, the woman can even be deported to her country of origin.

In order to prevent this, an additional emer-gency appeal for legal protection should be filed. In this appeal, the personal story of persecution must be described completely and thoroughly, along with evidence. This involves an enormous effort that needs to be taken care of within a week right after the negative decision and represents an obstacle that is very difficult to overcome. This is aggravated by the fact that, in most cases, the prospects for success are limited.

Once an asylum application has been filed, asylum seekers’ mobility rights will be temporarily regulated. Accordingly, they are required to take up residence, just as their freedom of movement can be curtailed.

Residence obligation

The residence obligation (Residenzpflicht) takes effect as of the day the asylum application is filed, usually for three months, but no longer than the applicant is required to reside in a reception centre. Residence obligation means that the person concerned may not to leave the territory of the responsible municipality, city or district without permission.

In order to attend a court appointment that requires an asylum seeker to appear in person, a prior permission to leave the allocated residence is not mandatory.

Once the residence obligation has ended after three months, the person may travel through-out Germany and stay overnight with friends.

Obligation to take up residence (not “residence restriction”, see below on this point)

This obligation (Wohnsitznahmeverpflichtung) determines where asylum seekers are required to take up permanent residence, that is, where they have to live and be registered. Just as the residence obligation, this regulation takes effect from day one.

There is an additional provision implying that asylum seekers reside in a reception centre, as a rule for the first six weeks, but no longer than six months. Even once having relocated to private housing or a shared accommodation, there is still the obligation to reside in a particular district or independent town.

There are also special regulations that apply, among others, to persons from so-called safe countries of origin.

In the case of so-called safe countries of origin, the legislator assumes that, due to their democratic status and general political situa-tion, there is no threat of persecution in these countries and that the respective state is capable of protecting citizens from persecution by non-state actors. The so-called safe countries of origin appear in a list contained in the annex to the Asylum Act. The list is reviewed every two years. Currently (as on September 2017), the following countries are included: the mem-ber states of the EU, Albania, Bosnia and Herze-govina, Ghana, Kosovo, Macedonia, the former Yugoslav Republic of Montenegro, Senegal, Serbia (Asylum Act, annex II ad section 29a).

Persons from these countries, except for EU citizens among them, are required to reside in the responsible reception centre for the duration of their asylum procedure. This rule can even apply until deportation if their asylum application has been rejected as “manifestly unfounded” or “inadmissible”. During this time, they are not allowed to take up work and may only temporarily leave the area specified in their residence permit if they have received permission from the Federal Refugee Office.

Residence restriction

Lastly, there is the residence restriction (Wohnsitzauflage) that has been added to section 12a of the Residence Act in 2016. This provision does not apply during but after the asylum procedure. This means that, for three years after having been granted asylum, recognised refugees are obliged to reside in that federal state which was responsible for their asylum procedure. Hence refugees cannot simply relocate to another federal state once they have been recognised as refugees. Moreover, according to this law, it is possible to specify in which municipality exactly the person concerned has to reside. The cancellation of the residence restriction can be achieved if a person takes up a study program, an apprenticeship or an employment, or because of other important reasons, such as violence and the ensuing necessity of taking refuge in a women’s shelter in a different municipality or in a different federal state.

Federal Office for Migration and Refugees (BAMF)

The Federal Office for Migration and Refugees is subordinated to the Federal Ministry of the Interior. It is responsible for overseeing the asylum procedure, that is, for reviewing the asylum application in terms of both form and content. It has at least one branch office in every federal state. The asylum application has to be filed in person. The personal interview during the asylum procedure also takes place at the Federal Office or one of its branch offices.

The Federal Office registers and stores the personal data and fingerprints of asylum seekers. The data will be fed into the European database EURODAC, and at first it will be checked if, according to the Dublin III Regulation, another European country is responsible for the asylum procedure. If not, then Germany and thus the Federal Office of Migration and Refugees is responsible.

Moreover, in each federal state, there are several reception centres, which are often connected to the branch offices of the Federal Refugee Office.

Foreigners Offices

Foreigners Offices are state or municipal authorities. They are responsible for implementing the residential regulations (as laid down in the Residence Act). This includes the execution of decisions made during the asylum procedure, that is, as regards the permission to relocate, the provision of work permits, the residential regulations following the approval of asylum applications, but also the implementation of expulsions and deportations. Once an asylum application has been approved, the Foreigners Offices are bound to the decisions made by the Federal Office. That is, they issue residence and permanent settlement permits for recognised refugees, asylum seekers and persons eligible for subsidiary protection. In the case of all other migrants (foreign students, graduates, employees, relatives and so on), the Foreigners Offices are responsible for making decisions. The Foreigners Offices also grant residence permits during the asylum procedure, just as they issue temporary suspensions of deportations during the Dublin procedure or after a final rejection of the asylum procedure.

To which gender-specific forms of violence does the respective regulation refer?

In the context of flight, gender-specific violence can occur in different situations, so that its consideration during the asylum procedure varies greatly in Germany:

Gender-specific persecution in the country of origin

Only violence suffered or gender-specific persecution in the country of origin can lead to the recognition of refugee status or subsidiary protection status. Because, according to the Geneva Refugee Convention, “the term ‘refugee’” applies to any person who “owing to well-founded fear of being persecuted for reasons of race[1], religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country”. Hence the issue at stake is persecution in the country of origin. Persecution also implies forms of gender-specific violence.

In the course of interpreting and further specifying the reasons for persecution given in the Geneva Convention, gender-based persecution has been assigned to “membership of a particular social group”. In doing so, the focus was at first on the gender-based persecution of women. The category of gender-specific persecution of refugees primarily pertained to sexualised violence committed by members of the state while exercising their authority in the country of origin (including torture, rape during police custody or incarceration). It also includes persecution measures by the state against women that are solely based on gender.

Such measures comprise, among others things, genital mutilation, forced marriage, or threats based on the supposed ‘westernisation of women’[2]. If the danger of persecution does not emanate from the state but from husbands, neighbours or other community members, then it has to be determined in a second step that the persecution is substantial and that the state and the organs of state are unwilling or incapable of protecting against such persecution.

However, the jurisdiction is inconsistent in this regard. In the case of forced marriage, for example, courts have reached all kinds of decisions, sometimes considering it an obstacle to deportation, sometimes as crucial to the recognition of refugee status.

What is important for the persons concerned is that the establishment of refugee protection status or obstacles to deportation is always an individual case-by-case decision and that it is impossible to make generalizations in this context.

Even if, for example, there are court cases in which a ‘considerable westernisation’[3] of women from Afghanistan has been recognised as a risk of persecution, such a decision cannot be expected from all courts and depends, moreover, on the particular person who is responsible for making the decision.

The persecution of LGBTI based on their sexual orientation or gender identity has meanwhile also been considered an indisputable reason for persecution owing to “membership of a particular social group”.

Gender-specific violence during flight / in the host country

Gender-specific persecution during flight or in the host country, on the other hand, cannot result in the recognition of refugee status. However, if such persecution involves considerable physical and/or psychological suffering in such a way as to threaten the life (survival) of the person concerned, this might entail that a prohibition of deportation is declared and that the person concerned is granted a residence permit.

As a matter of principle, directives for the protection against violence do not directly influence the asylum procedure. The asylum procedure is primarily concerned with assessing the situation in the country of origin.

But, as explained above, violence committed by a husband can influence a woman’s asylum procedure to the effect that such violence is considered an obstacle to deportation. In that case, it will be determined whether the violence committed by the husband or the circumstance that, for example, the husband’s children were or are (temporarily) being seized, might involve persecution upon returning to the country of origin. This can, for example, be the case if, according to the jurisdiction of the country of origin, the children belong with the husband’s family after a divorce and if the woman, who has fled together with her children from the husband, is threatened by the husband’s family.

However, this issue can only be assessed on an individual case-by-case basis and cannot be generalised.

It is indispensable to consider, not only in the case of long-term separations but especially in the case of a directive for the protection against violence, that the asylum applications of marriage partners can be processed individually. In that case, it is crucial to consult a lawyer beforehand.

In the case of a divorce, it needs to be clarified first which kind of residential status the marriage partners have and if both or one of their asylum applications is still being processed or if protection status has already been granted.

It should also be considered whether the stay – in our case, usually the women’s stay – depends on cohabitation or marriage status. There are different constellations:

The woman can be granted protection for family members of refugees, which means that it is because of the family unit that she will be recognised as a refugee. In that case, it will be determined if she “merely” followed her husband and if there are no individual reasons for flight or persecution. A divorce can affect a woman’s residential status considerably, if she received refugee status for family members because her husband has been persecuted.

The same applies if a woman has followed her husband for the purpose of family reunification and if she received a residence permit for family-related reasons. In that case, a divorce can affect her residential title considerably. In the worst case, she might forfeit her residence permit.

Accordingly, in the case of a divorce, it should be taken into consideration if the woman might have her own reasons for having to fear persecution, which she as yet has possibly not asserted, or if the divorce could amount to a new obstacle to deportation (see above 2.2).

In many cases, the divorce as such or, for example, the circumstance that the children are supposed to remain with the husband in the country of origin, can be considered a new obstacle to deportation. This issue should be clarified in each individual case by consulting a lawyer.

What is different again is the situation in which parents have children together who receive refugee protection through the father. In that case, the divorced woman can as well secure her residence title by providing parental care.

Regarding issues related to family law, there are generally no particularities that apply to persons whose asylum applications are being processed. Any person who seeks asylum can file a motion at a family court in order to obtain the right to determine the place of residence, to care and custody, to maintenance and to protection against violence. Difficulties may arise as the persons concerned do not hold German citizenship, so that due to their different nationalities, there is often the question of which particular legislation applies.

Such questions likewise have to be approached by other non-German couples or families.

Moreover, couples and families whose asylum application is still being processed have consider and clarify whether the asylum procedures are handled separately and what this implies as to the authority to represent the children. If, for example, a woman breaks up with her partner and takes the children with her, then she would actually have to file a request, along with her application to custody rights, to obtain the right to act as the sole representative regarding all matters pertaining to the children during the asylum procedure. Or, in the opposite case, the woman would have to file a motion to the effect that she will also be informed about decisions pertaining to her children, even if she has no access to information regarding her husband’s asylum application. In this context, the Federal Office for Migration and Refugees, lawyers and administrative courts frequently create legal facts that rest on shaky foundations in terms of family law.

In general, marriage contracts that have been concluded in a foreign country do no require additional recognition in Germany. It is possible to file a request for the certification of a marriage contract to be included in the marriage register if one of the marriage partners holds the German citizenship.

The requirements for concluding a marriage con-tract are subject to the legislation of the country of origin. A marriage contract that has been conclu-ded in the country of origin is also valid in Germany and will be officially recognised if the material and legal requirements for marriage (e.g. unmarried status, minimum age) were met by both partners in the country of origin at the time when the marriage was concluded and if the marriage has been recog-nised in the country of origin (according to section 13 of the Introductory Act to the German Civil Code). Exemptions from the recognition of mar-riages can be made if a foreign legal norm violates the public policy doctrine (the so-called “ordre public”). That is, if a foreign marriage is obviously irreconcilable with the basic principles of German law, it will not be recognised and therefore con-sidered invalid in Germany.

An assessment regarding the violation of the basic principles of German law (see section 6 of the Introductory Act to the German Civil Code) can only happen on an individual case basis and requires consideration of the special charac-teristics of the foreign legislation. A violation has been presumed if, for example, it is legal to marry at the age of 14 in the country of origin.

Unaccompanied underage refugees in Germany will be routinely entrusted to the Youth Welfare Office and appointed a legal guardian.

If, for example, an underage refugee arrives with their marriage partner, then it will first be determined whether the marriage is considered valid in Germany. In this context, there have been substantial changes since the introduction of the “Act Against Child Marriage” on July 18, 2017.

According to this law, it is now banned to conclude a marriage if one of the marriage partners is under 18 years of age, even with the consent of the parents or the Youth Welfare Office, as it was possible until now. Regarding marriages between minors concluded in a foreign country, it is now the case that marriages involving persons under 16 years of age are, as a rule, considered invalid and that marriages involving persons between 16 and 18 years of age shall be annulled upon request.

This has far-reaching legal consequences whose practical applications and effects remain to be seen.

The title alone, “Act Against Child Marriage”, signals a stigmatising attitude towards marriage in the public sphere. The term “child marriage” suggests the forced marriage of children, especially of girls up to the age of 14.

In fact, marriages with and between underage person arise out of various contexts, out of different realities of life. It seems inappropriate, for example, to frame the marriage between a 17-year-old and a 19-year-old adolescent, who married in order to flee from Syria to Germany, in terms of a “child marriage” (German Institute for Youth Human Services and Family Law, DIJuF e. V., February 22, 2017).

Further problems arise if, for example, a minor and their partner are already parents or if they have a child in Germany. In that case, paternity first has to be determined and recognised.

For this purpose, an underage person requires the approval of a legal representative (section 1596, paragraph 4, sentence 2, subsentence 2, German Civil Code). According to past experience, a legal guardian (representative) will only be appointed after a longer interval, in many cases only after months.

During that period, the legal representation of a child of an underage mother is restricted (section 1673, German Civil Code). It is possible to claim retroactive maintenance, but still such payments for supporting subsistence might be lacking for months.

Visitation rights are also not enforceable without legal paternity. The situation is similar when it comes to common parental care: The right to cooperative care involving the partner of an underage mother can only be claimed by issuing mutual custody declarations. This also requires the approval of the mother’s legal representative (section 1626c, sentence 2, subsentence 1, German Civil Code), which means that delays and unclear legal situations are to be expected. It is also questionable if and when the parents will receive appropriate counselling / information in order, for example, to catch up on the acknowledgement of paternity and the submission of mutual custody declarations.

In the case of a divorce, it needs to be clarified first which kind of residential status the marriage partners have and if both or one of their asylum application is still being processed or if protection status has already been granted.

It should also be considered whether the stay – in our case, usually the women’s stay – depends on cohabitation or marriage status. There are different constellations:

The woman can be granted protection for family members of refugees, which means that it is because of the family unit that she will be recognised as a refugee. In that case, it will be determined if she “merely” followed her husband and if there are no individual reasons for flight or persecution. A divorce can affect a woman’s residential status considerably, if she received refugee status for family members because her husband has been persecuted.

The same applies if a woman has followed her husband for the purpose of family reunification and if she received a residence permit for family-related reasons. In that case, a divorce can affect her residential title considerably. In the worst case, she might forfeit her residence permit.

Accordingly, in the case of a divorce, it should be taken into consideration if the woman might have her own reasons for having to fear persecution, which she as yet has possibly not asserted, or if the divorce could amount to a new obstacle to deportation (see above).

In many cases, the divorce as such or, for example, the circumstance that the children are supposed to remain with the husband in the country of origin, can be considered a new obstacle to deportation. This issue should be clarified in each individual case by consulting a lawyer.

What is different again is the situation in which parents have children together who receive refugee protection through the father. In that case, the divorced woman can as well secure her residence title by providing parental care.

As long as the Federal Office (BAMF) or the Foreigners Office is still processing the asylum application, refugees – including female refugees who have been affected by gender-based violence – have to pay on their own for legal counselling.

In this case, however, it is possible, just as in the case of family or criminal proceedings, to apply for legal aid for extra-judicial proceedings. Still, a one-time legal aid amounting to roughly 100 € does not allow for appropriate legal representation during the asylum procedure.

Refugee support organisations, such as Pro Asyl, the German AIDS Service Organisation (Deutsche AIDS Hilfe), Reporters Without Borders and others, often subsidise the legal representation of refugees. It is also possible to consult women’s organisations on whether they can subsidise attorney fees in individual cases.

Who will cover the costs if an asylum seeker files an appeal against a rejected asylum application?

If the Federal Office (BAMF) partially or completely rejects an asylum application and if an appeal against this decision is filed at the administrative court, then it is possible to apply for legal aid to cover the costs of the complaint proceedings. The approval of such legal aid depends, for one thing, on whether the person concerned is in need of it. The person thus has to prove that she does not have the necessary financial means at her disposal. For another thing, the outcome of the proceedings at least needs to be still open. The state will not cover the costs for lawyers to get involved in court proceedings that are futile from the outset.

For this reason, the administrative court will decide on whether or not to grant legal aid based on the prospects of the complaint. This kind of decision-making process is as unpredictable as the outcome of the proceedings differs from court to court. Hence it is by no means possible to predict whether or not legal aid will be granted when filing a complaint.

Since the decision on granting legal aid is often made only very late during court proceedings, lawyers generally ask for a retainer and for fees to be paid in monthly instalments, for which the client then can be reimbursed in case legal aid is granted.

During administrative court proceedings, legal representation is not obligatory. This means that the person concerned does not have be represented by a lawyer. Hence, for example, a complaint can be filed within a certain period of time at the court’s office for legal requests directly by the refugee herself. At this office, there will be court personnel who can assist with the application. Another option would be to consult an experienced circle of supporters in order to draft a sound statement for the application, so that it becomes possible to call in a lawyer only at a later time.

Yes, in general, a woman who has been affected by violence can receive a counselling voucher. It will be difficult, however, to find a lawyer who is willing to take over the extensive legal representation required by an asylum procedure in return for a counselling voucher of 100 € (see above)

Once the procedure has been concluded, the possibility of making use of a counselling voucher depends on the prospects of a complaint. As soon as the court proceedings have commenced, the right to counselling assistance ceases and is followed by the right to legal aid (see above).

There are possibilities for funding interpreters through public subsidies, namely through funding and support programs by federal states and municipalities as well as state shares in funds for women’s shelters and expert counselling centres. However, such arrangements are not available in all federal states and not in all women’s shelters and counselling centres.

The quality of interpretations, the access to funding possibilities, and the accounting procedures may vary considerably from region to region and from case to case.

Further information

As yet there is no consistent nationwide arrangement regarding the funding of interpretation services. In practice, this leads to a dramatic shortage of professional translations.

As a result, it is often children or non-professional supporters recruited from a wider social context who take care of translations.

It is likewise problematic that, in many locations, public subsidies are not made available for professional interpreters but only for language mediation. This way the professional standards that are necessary when it comes to a sensitive subject such as violence cannot be ensured.

Moreover, poorly paid team members with the necessary language skills are often additionally hired (for example, as marginal employees on a 400€ basis) or deployed as interpreters in such a way that goes beyond their actual responsibilities. In refugee shelters, this task is frequently carried out by security guards, so that there is a mixing up of professional roles, which also constitutes a breach of the requirement of neutrality on the side of the interpreter.

Also, interpretation services are often only available for larger language groups (e.g. Arabic or Russian), while interpreters for other languages are hard to find.

Expert counselling centres and women’s shelters have for a long time requested from federal, state and local authorities that adequate funding for interpretation services shall be made available in all federal states throughout Germany.

The residence obligation (see above) restricts mobility rights during the first few weeks after submitting an asylum application or, in the case of persons from so-called safe countries of origin, for the whole duration of the asylum procedure. This means that women affected by violence, who in order to escape their perpetrators have to relocate to a place that the residence obligation keeps them from going to, first have to obtain a permit (by filing a request, if possible in written form, at either the Federal Office or the Foreigners Office, depending on the stage reached in the asylum procedure). Otherwise they will violate the residence obligation and commit an offence. In the case of women affected by violence, such an offence, which occurs due to having to escape the perpetrator, is deemed justified and has no direct negative influence on the asylum procedure.

Since this often involves a situation of imminent danger, it is generally possible to file the request belatedly or rather the women’s conduct will be considered as having been excused.

At the beginning of the asylum procedure, there is the obligation to stay in a reception centre for a duration of up to six weeks, or for six months at most.

This obligation expires after six months if the asylum application has been previously approved, if the person obtains a legal claim to a residential title by way of marriage or civil partnership or if the person is allocated to a shared accommodation.

The question of whether a person is allocated to a shared accommodation or obtains the right to take up their own residence is settled different-ly from one state to the other.

Also, in cases of hardship, the obligation to stay in a reception centre can be repealed early, so that the corresponding residence restriction expires and the affected woman can move early into a shared accommodation or into an own apartment.

An allocation request (directly following the ob-ligation to reside in a reception centre) or a re-allocation request (i.e. a subsequent change of allocation within or outside the federal state) is filed so that a woman is granted permission to relocate to a particular place. In doing so, the domestic community of family members or “other equally important humanitarian rea-sons” shall be taken into account.

The person concerned herself (and possibly with the help of supporters) can at any time urge for fast-track processing of a reallocation request – in the case of experiences of violence, the request will be well-substantiated. There is no general legal or administrative provision stating that certain requests will undergo fast-track processing. As a general principle, if authorities remain inactive for at least three months, it is possible to take action against failure to act at the administrative court. In social lawsuits, however, there must be a period of inactivity of six months prior to filing a complaint.

It follows from the wording of the legal regu-lation that the internal distribution of a federal state takes precedence over cross-border distri-bution and that this shall be taken into account, especially in cases of reallocation requests due to humanitarian reasons. That Foreigners Office, which is responsible for a particular place of arrival, takes care of processing the requests.

Whether and to which extent the request will and can be granted according to the location of choice thus depends on which humanitarian reasons exist and will be claimed for the particular location. In this context, it is important, for example, to put forward that the woman will receive the support she needs at the location of choice, that supportive relatives live there or that there is a vacancy in a women’s shelter. In general, the requirements for substantiating a reallocation request are relatively high; however, in the case of women affected by violence, they can be substantiated by taking the abovementioned aspects into account.

Expressing a general desire to live in a particular place is usually not enough.

It is, of course, possible for women who have been affected by violence and whose asylum application is still being processed to preclude perpetrators from returning to shared accom-modations and own apartments. The police can impose a restraining order on the perpetrators, and accommodation providers can pronounce a house ban.

When issuing such orders, however, a potential residence restriction or obligation on the side of the perpetrator needs to be taken into consideration. If a residence obligation still applies to the perpetrator, then he will commit an offence by being expelled from his assigned territory. In case a residence restriction still exists, he cannot simply take up residence outside of that territory. In case of an order issued by the family court, the order thus has to make reference to a modified residence restriction or include an allocation to a different accommodation.

As a general principle, directives for the protection against violence do no have any direct influence on the asylum procedure. The asylum procedure is first and foremost about assessing the situation in the country of origin.

However, as already explained above, violence committed by the marriage partner can influence the asylum application of a woman affected by violence to the effect that it might constitute an additional obstacle to deportation. In this case, it will be assessed whether the violence committed by the partner or, for example, the circumstance that the latter’s children (temporarily) have been or are being taken away might entail persecution upon assumed return to the country of origin. This might be the case, for example, if, according to the legislation of the country of origin, the children belong to the husband’s family after the divorce and if the wife, who together with the children has fled from her husband, is threatened by the husband.

Yet this question can only be answered for an individual case and does not allow for generalisation.

It is indispensable to keep in mind that the asylum applications submitted by the marriage partners can be processed separately, not only in the case of a long-term divorce but also when it comes to directives for the protection against violence. It is very important to consult a lawyer on this issue.

As yet there is no consistent nationwide complaint structure for refugees and their supporters.[1] Currently, different groups of persons address their complaints to various actors within and outside of shelters.

It should be possible to address complaints to all parties active within a shelter (management, staff, inhabitant representatives, external expert bodies or cooperation partners as well as volunteers).

Which higher-level actors can be approached?

Unless there are no formally defined complaint structures, the following actors are among the potential addressees of complaints:

ombudspersons for refugees (e.g. in Cologne, Berlin or Hamburg, Baden-Württemberg)

specialist services concerned with migration

International Women’s Space Berlin (IWS) is a feminist political group of women with experiences of migration and flight. Among a variety of other things, this group collects complaints pertaining to refugee shelters.

The “Minimum Standards for the Protection of Children, Adolescents and Women in Refugee Accommodation Shelters”, issued by the federal initiative of the Ministry for Family Affairs, Senior Citizens, Women and Youth (BMFSFJ) and UNICEF, demands the establishment of both internal and external complaint offices.

[1] The state of North Rhine-Westphalia constitutes an exception as it provides funding a complaint office in every state shelter. Moreover, the state has arranged for a supraregional coordination office, mobile controlling team as well as a round-table located at the state’s ministry of internal affairs.

If a woman has already moved to a women’s shelter due to acute violence, then the following issues should be noted: In case of an existing obligation to reside in another municipality or district, a request has to be filed with the authorities at the arrival location, so as to be reallocated to the municipality in which the women’s shelter is located (see here and here or see appendix).

There might also exist a residence obligation (see above), so that by changing the women’s shelter, the woman concerned will commit an offence. However, if committed by a woman who has been affected by violence and who flees to escape her perpetrator, such an offence will be considered justified and has no direct negative impact on the asylum procedure.

A violation of the residence obligation constitutes an offence (section 86, Asylum Act), and repeated violations will already be considered a criminal offence (section 85, sentence 2, Asylum Act). However, if committed by a women who has been affected by violence and who flees to escape her perpetrator, such an offence will be considered justified and and has no direct negative impact on the asylum procedure.

An allocation request (directly following the obligation to reside in a reception centre) or a reallocation request (i.e. a subsequent change of allocation within or outside the federal state) is filed so that a woman is granted permission to relocate to a particular place. In doing so, the domestic community of family members or “other equally important humanitarian reasons” shall be taken into account.

The person concerned herself (and possibly with the help of supporters) can at any time urge for fast-track processing of a reallocation request – in the case of experiences of violence, the request will be well-substantiated. There is no general legal or administrative provision stating that certain requests will undergo fast-track processing. As a general principle, if authorities remain inactive for at least three months, it is possible to take action against failure to act at the administrative court. In social lawsuits, however, there must be a period of inactivity of six months prior to filing a complaint.

It follows from the wording of the legal regulation that the internal distribution of a federal state takes precedence over cross-border distribution and that this shall be taken into account, especially in cases of reallocation requests due to humanitarian reasons. That Foreigners Office which is responsible for a particular place of arrival takes care of processing the requests.

Whether and to which extent the request will and can be granted according to the location of choice thus depends on which humanitarian reasons exist and will be claimed for the particular location. In this context, it is important, for example, to put forward that the woman will receive the support she needs at the location of choice, that supportive relatives live there or that there is a vacancy in a women’s shelter. In general, the requirements for substantiating a reallocation request are relatively high; however, in the case of women affected by violence, they can substantiated by taking the abovementioned aspects into account.

Expressing a general desire to live in a particular place is usually not enough.

When it comes to changing names, the legislation of the country in which the person concerned is a citizen is decisive. For this reason, German authorities may, as a general principle, only permit the name change of German citizens. In the relevant legal text, the Act on Changing Surnames and First Names (NamÄndG) and the corresponding administrative provision, stateless persons and recognised refugees as well as persons entitled to asylum have the same status. Hence first name and/or surname of such persons can be changed provided that such change is justified by an important reason.

Changing a name is not possible for persons whose asylum application is still being processed or persons who reside in Germany not as recognised refugees or as persons entitled to asylum but for other reasons and who could therefore consult the authorities of their countries of origin.

The right to name change is a legal exception that shall only be granted if the applicant’s legitimate interest in protection outweighs the public interest in maintaining the current name. Discrimination on the job market, for example, is not considered a sufficient reason, since the naming law is not intended to counteract undesirable social developments. Case examples for important reasons can be found in the administrative provision accompanying the Act on Changing Surnames and First Names.

Another important provision is the simplified name change procedure that can be found under section 47 of the Introductory Act to the German Civil Code. According to this provision, a person who, for example, applies for German citizenship after having been recognised as a refugee can change their surname following naturalisation if that surname is particularly indicative of the person’s foreign origin or if, in the interest of further integration, the person would prefer a less conspicuous surname. For this purpose, the person may as well adopt a German version of the current first name or surname or, if such a version does not exist, even a completely new name.

In September 2016, the new penal code for sexual offences came into force in Germany, implementing the long-demanded principle ‘no means no’. According to the new legislation, any non-consensual act of a sexual nature constitutes a punishable offence. However, this new legislation on sexual offences also involves a tightening of regulations governing the right of residence.

These amendments pertain both to the right of expulsion and the possibility of deportation. Expulsion means that a person holding a residence title in Germany may be deprived of that title. It does not necessarily mean that this person can be deported because factually and legally this is often not possible. In such a case, the person will be denied participation in many areas of social life, for example, by withholding a work permit or the access to an integration course.

What is relevant in this context is the section of the Residence Act concerning the interest in expulsion, which can be of serious and of particularly serious public interest (section 54, Residence Act). In the past, the interest in expulsion was, according to section 54, sentence 1 of the Residence Act, considered as particularly serious, and it was mostly imposed on persons who had been sentenced to a prison term of at least one year and who had committed an offence using violence or a threat of danger to life and so on. In the future, the interest in expulsion will be considered as particularly serious in the case of any kind of sentence according to section 177 of the Criminal Code, thus making expulsion or deportation far easier. In addition to expulsions, deportations will be possible even if persons are in danger in their country of origin or if they are entitled to asylum. According to section 60 of the Residence Act, deportation is also possible in those cases in which a person has been sentenced to a prison term of at least one year according to section 177 of the Criminal Code.

This means that persons can be excluded from refugee protection and that they will not be recognised as refugees. In any case, the Foreigners Office or the Federal Office of Migration and Refugees still has to determine whether or not there are obstacles to deportation. If, for example, persons have to face the death penalty in their country of origin or a form of incarceration that involves human rights violations or the like, they can still not be deported.

This tightened legislation entails more severe punishment for perpetrators without German passport, because this group of persons has to expect, in addition to being convicted according to the Criminal Code, a negative impact on their residential status. This legislation could also negatively influence the readiness to report offences, since affected persons might be reluctant to report a known perpetrator without German passport if this would lead to the perpetrator’s deportation.

Among the amendments was also the introduction of offences committed within a group (section 184j, Criminal Code). This provision states that “whosoever participates in a group that coerces another person to commit an offence” is liable to prosecution. This way persons can be punished for acts they have neither committed nor anticipated. This legal provision represents a political reaction to the assaults in Cologne on the night of New Year’s Eve 2015/2016. The media coverage of these events created the impression that sexual harassment in Germany is primarily a problem related to perpetrators who are non-“bio-deutsch” (that is, migrants). There is reason to fear that, in the future, the definition of group membership will be strictly aligned with this very criterion.

Church asylum refers to religious communities temporarily accommodating refugees – at times also irrespective of the religious belief of the asylum seekers. It aims at preventing deportation in situations of danger (also in the case of deportations according to the Dublin III Regulation) and at resuming or reexamining an asylum procedure or the consideration of a case of hardship on the side of the responsible state authorities.

The decision on granting church asylum is mostly made by the church leadership or council. The church community can receive advice from staff members of the Commissioner for Refugees and Migration or from parish offices for refugees that many state churches and dioceses have established. Moreover, the arrangement and implementation of church asylum can be supported by (church) counselling centres, migration services and the local working groups on “Church Asylum”.

The Foreigners Office or another responsible local authority will be informed by the church community on their decision on granting asylum.

The asylum-granting church community provides a space to live and prepare food and with sanitary facilities. Often there is a circle of supporters that assists the parish council and its members and the refugees in their everyday life (e.g. during conversations with lawyers and authority representatives and by connecting them with local initiatives).

In most cases, church asylum is financed through donations received by the parish. The duration of fundraising varies from a few weeks to several months.

Homepage: Federal Ecumenical Workgroup on Church Asylum The homepage lists events, news, state-ments, contact addresses, publications and further information. The Federal Ecumenical Workgroup on Church Asylum is an “organised union of church asylum initiatives in Germany. It comprises the network of all church parishes that are willing to grant refugees church asylum in order to prevent their deportation if there is reasonable doubt about their safe return. As a federal work-group, we support refugees and their sup-porters by means of public relations and lobby work, publications, conferences and community counselling.”http://www.kirchenasyl.de/

Field report: Church asylum for a woman affected by violence and for her children “Church asylum for a female refugee. Report from a women’s shelter.” Newsletter, Association of Women’s Shelters, ”Protecting female refugees against violence”, 1/2015, pp. 9-10: newsletter_FHK_2015-1_web.pdf